91 N.C. 656 | N.C. | 1884
A bill of indictment against the defendant was sent to the grand jury at the fall term, 1884, of Orange superior court, which was "ignored." At the same term, a second or new bill was sent against the same party for the same offence before the same grand jury, and a witness other than that sent upon the first bill was sworn and sent. The second bill was returned into court "a true bill." Thereupon the defendant's counsel moved to quash the second bill, the court sustained the motion and the state appealed. We are unable to conceive of any adequate reason why, where the grand jury ignores a bill, a new one may not be sent for the same offence and before the same grand jury, whether reference be had to the rights of the party accused, or the orderly course of judicial procedure. The bill ignored may not be returned to the grand jury because the presentment embodied in it has passed into the record, and the bill itself has gone upon the files of the court. But another bill may be sent at once, if need be, *657 and the same and additional evidence laid before the grand jury to support it.
There might be a variety of reasons why a new or fresh bill should be sent, as that the jury might have failed upon the first bill to examine the witness properly, and elicit all the facts; or, they might have misapprehended the character of the evidence which they could understand and appreciate after some explanation of it by the court in a proper case; or, new evidence might be produced; and indeed, it is easy to conceive of a case in which it might be of great moment to society and a due administration of public justice that a new bill should be promptly sent.
It may be said that if a second bill can be sent in such a case, so may a third and fourth under like circumstances; and thus the accused might be greatly harrassed [harassed] and oppressed. It is not to be presumed that the prosecuting officer would needlessly multiply bills for the same offence, much less that he would so prostitute his office to gratify his own malice or that of others. He would be amenable for such an offence, and besides the grand jury might refuse to act upon bills thus sent, and complain to the court; and upon proper application the court would promptly interpose a wholesome check.
It is true that, ordinarily, where a party is recognized to appear at the court and answer a criminal charge, or where he is detained in prison to await the action of the grand jury upon a criminal charge against him, he is entitled to be discharged as soon as the bill is ignored and returned into court; but it is likewise true, that upon satisfactory evidence laid before the judge, he may refuse to discharge the accused, or, require him to give new bail; or a committing magistrate, upon like evidence, may at once issue a warrant for his re-arrest. This is frequently done. And in many cases, bills against parties are sent to the grand jury before they have been arrested and while they are at large. *658 So that, no right of the accused is necessarily invaded or abridged by sending a second bill in the case mentioned.
It has been common practice in this state to send a second bill for the same offence at the same term of the court where the first had been ignored, if need be. We have not known such practice condemned, nor are we aware that it has in any case led to needless vexation or apprehension of the accused.
In State v. Branch,
So it seems that the practice in England is not clearly or certainly settled, but the preponderance of authority there, is against sending a fresh bill to the same grand jury for the same offence where the first had been ignored. No satisfactory reason is assigned for this that we have seen. It is said to be founded in convenience, and this is probably the correct reason. Regina v. Humphrey, 1 Car. Mar., 601.
It seems, however, that this practice has not obtained recognition in this country. Knott v. Sargent,
There is error. The judgment quashing the indictment must be reversed, and the action proceeded with according to law. To this end, let this be certified to the superior court of Orange county.
Error. Reversed.